92 Decision Citation: BVA 92-25150
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-00 928 ) DATE
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THE ISSUE
Entitlement to service connection for a disability of the
right lower extremity.
REPRESENTATION
Appellant represented by: Veterans Affairs Division,
Montana
ATTORNEY FOR THE BOARD
Jill L. Rygwalski, Associate Counsel
INTRODUCTION
This matter came to the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the Department of
Veterans Affairs (VA) Medical and Regional Office Center
(M&ROC) in Fort Harrison, Montana. The veteran served on
active duty during the Korean conflict. A rating decision
dated in March 1991 reflects that the M&ROC reopened the
veteran's claim for service connection for a disability of
the right lower extremity and then denied the reopened claim
following a de novo review of the record. The veteran filed
a notice of disagreement in March 1991 with the M&ROC's
denial of his reopened claim. The statement of the case was
issued in April 1991. The veteran filed his substantive
appeal in May 1991.
The case was received and docketed at the Board in February
1992. The veteran has been represented in his appeal by the
Montana Veterans Affairs Division. That organization
submitted written argument on behalf of the veteran in
December 1991.
REMAND
Initially, we note that the veteran submitted two copies of
his VA Form 1-9 in May 1991. One version, received on May
13, 1991, indicates that the veteran desired to be present
at a hearing to be held at the M&ROC. A second version,
received on May 14, 1991, indicates that the veteran did not
desire to be present at a hearing. In light of the
foregoing, clarification regarding this matter is required.
The etiology of the veteran's right lower extremity
impairment is not clear from the record, nor is it clear
that all available treatment records pertaining to the right
lower extremity have been obtained. Therefore, the Board
believes that further medical development should be
completed, as specified below, prior to reaching a final
decision on this issue.
We also note that the veteran has raised a claim for service
connection for post-traumatic stress disorder. This claim
has not been adjudicated by the M&ROC. In light of recent
decisions of the United States Court of Veterans Appeals,
including Harris v. Derwinski, 1 Vet.App. 180 (1991), EF v.
Derwinski, 1 Vet.App. 324 (1990), and Payne v. Derwinski, 1
Vet.App. 85 (1990), the Board finds that the case should be
returned to the M&ROC so that the aforementioned issue can
be developed and adjudicated.
Accordingly, the case is REMANDED to the M&ROC for the
following actions:
1. The M&ROC should request the veteran
to clarify whether he desires a hearing
on appeal. Appropriate action should be
taken in light of the veteran's response.
2. The M&ROC should contact the veteran
and request that he provide names and
addresses of all health care providers
who have treated him for post-traumatic
stress disorder and/or a disability of
the right lower extremity, specifically,
residuals of shell fragment wounds of the
right lower extremity, since separation
from service in October 1952, as well as
the approximate dates of treatment.
Then, after any necessary authorization
is obtained from the veteran, the M&ROC
should attempt to obtain copies of all
treatment records identified by the
veteran which are not currently of record.
3. The M&ROC should contact the veteran
and request him to provide a detailed
statement of the service stressors which
he believes caused his post-traumatic
stress disorder.
4. The M&ROC should arrange for VA
orthopedic and psychiatric examinations
of the veteran. The psychiatric
examination should be performed to
determine the nature and extent of any
current psychiatric disorder, including
post-traumatic stress disorder. All
indicated studies should be performed.
The examiner should specifically confirm
or rule out a diagnosis of post-traumatic
stress disorder. The claims folder
should be made available to the examiner
prior to the examination. The orthopedic
examination should be performed to
determine the nature, extent, and
etiology of any currently present
abnormalities of the right lower
extremity. The examiner should
specifically address whether the veteran
has any residuals of shell fragment
wounds of the right leg and foot. All
indicated studies should be performed,
including X-ray studies. The claims
folder should be made available to the
examiner prior to the examination.
5. Then, the M&ROC should readjudicate
the claim for service connection for a
disability of the right lower extremity,
and adjudicate the claim for service
connection for post-traumatic stress
disorder.
If the veteran disagrees with any of the decisions of the
M&ROC, and if otherwise appropriate, a supplemental
statement of the case should be issued for all issues in
appellate status, and the veteran and his representative
should be provided an opportunity to respond. Then, the
case should be returned to the Board for further
consideration, if otherwise in order. By this REMAND, the
Board intimates no opinion as to the final outcome
warranted. No action is required of the veteran, until he
is contacted by the M&ROC.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JOHN J. CASTELLOT, SR., M.D. SHANE A. DURKIN
*
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).